Swift v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS ******************** * DOUGLAS SWIFT, * No. 13-763V * Special Master Christian J. Moran Petitioner, * * v. * Filed: June 5, 2014 * SECRETARY OF HEALTH * Stipulation; influenza (flu) vaccine; AND HUMAN SERVICES, * Guillain-Barré Syndrome (“GBS”); * attorneys’ fees and costs.

Respondent. * ******************** * Sheila A. Bjorklund, Lommen Abdo Law Firm, Minneapolis, MN, for Petitioner; Lara A. Englund, U.S. Dep’t of Justice, Washington, D.C., for Respondent.

UNPUBLISHED DECISION1 On May 22, 2014, respondent filed a joint stipulation concerning the petition for compensation filed by Douglas Swift. In his petition, Mr. Swift alleged that the influenza (“flu”) vaccine, which is contained in the Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which he received on September 22, 2012, caused him to suffer Guillain-Barré Syndrome (“GBS”). Petitioner further alleges that he experienced residual effects of this injury for more than six months.

Petitioner represents that there has been no prior award or settlement of a civil action for damages on his behalf as a result of his condition.

Respondent denies that petitioner's alleged GBS and residual effects were caused-in-fact by the flu vaccine. Respondent further denies that the flu vaccine caused petitioner any other injury or his current condition.

The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website.

Nevertheless, the parties agree to the joint stipulation, attached hereto as Appendix A.

Respondent also filed a joint stipulation of fact concerning final attorneys’ fees and costs on May 22, 2014. Prior to filing this stipulation, Mr. Swift informally submitted a draft application for attorneys’ fees and costs to respondent for review. Upon review of petitioner’s application, respondent raised objections to certain items. Based on subsequent discussions, petitioner amended his application to request $16,000.00, an amount to which respondent does not object.2 Additionally, in compliance with General Order No. 9, Mr. Swift states that he incurred no out-of-pocket litigation expenses while pursuing this claim.

The undersigned finds said stipulations reasonable and adopts it as the decision of the Court in awarding damages and attorneys’ fees and costs, on the terms set forth therein.

Compensation awarded in the stipulations includes: A. A lump sum of $53,812.78 in the form of a check payable to petitioner, Douglas Swift. This amount represents compensation for all damages that would be available under 42 U. S.C. § 300aa- 15(a).

B. A lump sum of $16,000.00 in the form of a check payable jointly to petitioner and petitioner’s attorney, Sheila A. Bjorklund of the Lommen Abdo Law Firm, for attorneys’ fees and costs available under 42 U.S.C. §300aa-15(e).

In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter judgment in case 13-763V according to this decision and the attached stipulation.3 Any questions may be directed to my law clerk, Mary Holmes, at (202) 357- 6353.

The undersigned ordered that petitioner file his draft application for fees and costs for review. See order, filed May 28, 2014. On June 5, 2014, petitioner submitted his draft application with comments objecting to the undersigned’s order.

Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each party filing a notice renouncing the right to seek review by a United States Court of Federal Claims judge.

IT IS SO ORDERED.

s/Christian J. Moran Christian J. Moran Special Master

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